National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo is taking aggressive positions designed to help unions be more successful in organizing. The GC is the agency’s top lawyer. While she can’t unilaterally change the law, she can argue prior precedent was wrongly decided and urge the present union-friendly NLRB members to change the organizing rules.
Making Elections Optional
For about 50 years, the law has been stable. An employer can insist on an NLRB-supervised secret-ballot election instead of recognizing a union as the exclusive representative of its employees when a union claims it has authorization cards signed by a majority of the workers. In a recent case, however, the GC submitted a legal brief arguing the Board should return to its 1948 standard, which required an employer to recognize a union unless it can prove the union doesn’t have authorization cards authentically (not fraudulently) signed by a majority of the employees. Cemex Construction Materials Pacific.
A return to the 1948 standard would eliminate elections in the vast majority of cases. It would be very difficult for a business to combat union organizing. Employers often don’t know about organizing efforts until after cards are signed. A union could be put in place before the company has the opportunity to engage in a proemployer campaign. Alternatively, the employer would be forced to engage in the expensive process of arguing, before the NLRB, the authenticity of each employee’s authorization card.
If the standard is changed, you would be advised to proactively educate employees about unions, before there is any indication of organizing, to reduce the chances of unionization.
Depriving Employers of Right to Require Employees to Attend Speeches
Employers often require employees to attend speeches and meetings on work time to educate them about why the business doesn’t believe a union is in their or the company’s best interest. The practice has been lawful (except for the 24-hour period immediately before an election) for nearly 75 years.
The GC recently issued a memorandum declaring her position that requiring employees to attend the speeches violates the law and that she will ask the NLRB to reverse the precedent. If the Board agrees to reverse this long-standing precedent, it will make it more difficult for employers to win an election.
Bottom Line
Employers concerned about becoming a union target should consider taking a proactive approach, including supervisor training on how to recognize a union campaign, the legal do’s and unlawful don’ts when confronted with union organizing, and how to lawfully respond to employee questions. Also, consult with legal counsel on when it’s appropriate in your particular situation to provide employees with information on unions to get ahead of the organizing efforts.
Gary S. Fealk is an attorney with Bodman PLC in Troy, Michigan. You can reach him at gfealk@bodmanlaw.com.